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As of this date, courts in the following 28 states have recognized the doctrine of negligent hiring: Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Louisiana, Maryland, Michigan, Minnesota, Missouri, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, and Washington.
Expect more states to follow suit.
If you think hiring a professional is
expensive, wait till you
hire an amateur. --Red Adair
Contract
Investigators
Wanted
I am constantly looking for contract investigators in the Southwest who can help out with eyes and ears in various locations.
If you—or someone you know—is willing to help me out on an occasional basis, please call me at 1-800-256-0205 or email wbrewr@yahoo.com.
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| | WHEN IN DOUBT, CHECK 'EM OUT!
Criminal Record Searches Are Vital to Pre-Employment Investigations
The 2003 arrest of an employee of the Sunshine Theatre in Albuquerque on charges of criminal sexual penetration and the murder of a theatre patron—in addition to the heartbreak caused to the victim's family—certainly was an employer's worst nightmare come true. This particular situation was especially tragic since it could easily have been avoided if a basic and inexpensive pre-employment background investigation had been conducted. The employee was a registered sex offender at the time that he was hired by the theatre and theatre management could easily have obtained this information in less than five minutes.
When it comes to hiring employees, prudence dictates always being in doubt and always checking applicants out. One of the many good reasons for conducting pre-employment background investigations is to guard against employee theft and potential threat to customers, co-workers, and property. Failure to conduct some type of pre-employment screening also can leave an employer open to charges of negligent hiring—a legal doctrine that makes employers responsible for checking the backgrounds of job applicants, especially those who will have contact with the public. One state court has ruled, for example, that "employers breach their duty of care when, despite suspicious facts on an employee's application, they fail to make a proper investigation."
An employee background investigation may also be required when an individual whose original position did not include contact with the public changes over time to include public contact. In some cases, failure to conduct such an investigation can make an employer liable to charges of negligent retention. [Note: Your attorney can properly advise you concerning your company's actual hiring practices, including the use of signed releases.]
Public Records
A great deal of information can be obtained from public records, much of it for free or at a low cost. And—as in the case of the theatre employee described above—criminal conviction records may surface immediately. If an applicant has a stable residence history, a search of local public records may be sufficient. But applicants do not always include all previous addresses on their resumes or applications—especially if they have something to hide. And there are limitations inherent in the public records search process.
First of all, the thoroughness of a pre-employment investigation hinges on knowing all of the places where the applicant has resided and checking all courts and law enforcement agencies in those venues. A complete record search in one venue usually involves checking with city, county, state, and federal courts, as well as city, county, and state law enforcement agencies.
Secondly, an alternative to searching all agencies in all venues—conducting a criminal history check in the known venues—generally only provides conviction information. A criminal history check usually will not disclose if an individual:
· has been charged with a crime but failed to appear in court,
· has a warrant for probation or parole violation, or
· failed to register with the sex offender registry,
any of which would certainly be a red flag in the hiring process.
Warrants are public records but warrant information for individuals who fail to appear in court may not be included in the databases accessed for criminal history checks. While failure to appear in court is not itself indicative of guilt, some petty criminals know enough about the criminal justice system to leave a jurisdiction after they have been arrested. They know it is unlikely that anyone will try to come after them to extradite them, so they relocate and many go on to commit more crimes. One such individual was found to have seven outstanding warrants in four states in a little over a year for writing bad checks.
Professional Assistance
A professional investigator is able to eliminate or at least minimize some of the limitations of a public records search. As a result of having access to many non-public databases, an investigator is able to obtain more complete information regarding an individual's current and previous addresses. This makes it easier to conduct a more thorough record search. Many investigators conduct various types of background investigations on a routine basis and are familiar with the ins and outs of locating and accessing court and law enforcement agency records; therefore, they can do so more efficiently.
Professional investigators now also have access to non-NCIC wants and warrants information. In addition to warrants for heinous crimes (such as murder, sex offenses, and drug trafficking), an investigator can now access information on warrants for lesser felony and misdemeanor charges, failure to appear, absconding, and failing to register for the sex offender registry. While employers certainly want to know if a job applicant has a felony conviction, they should be equally interested in knowing about an applicant's history of petty crime.
A policy of conducting comprehensive pre-employment background investigations is a good business investment. It is worth the time of every employer—no matter how small—to determine the company's needs in this area, obtain appropriate legal advice, and make sure that a consistent procedure is implemented and followed.
The next issue of the The Southwest Investigator will focus on the brand new tool now available to professional investigators that dramatically expands our ability to search for outstanding wants and warrants.
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